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- Pullen v State of Queensland (Queensland Health)[2024] QIRC 254
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Pullen v State of Queensland (Queensland Health)[2024] QIRC 254
Pullen v State of Queensland (Queensland Health)[2024] QIRC 254
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Pullen v State of Queensland (Queensland Health) [2024] QIRC 254 |
PARTIES: | Pullen, Lucia Maria (Appellant) v State of Queensland (Queensland Health) (Respondent) |
CASE NO: | PSA/2024/147 |
PROCEEDING: | Public Sector Appeal – Conversion Decision |
DELIVERED ON: | 30 October 2024 |
MEMBER: | McLennan IC |
HEARD AT: | On the papers |
ORDERS: | Pursuant to s 562C(1)(c) of the Industrial Relations Act 2016 (Qld):
|
CATCHWORDS: | PUBLIC SECTOR – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – temporary employment – appeal against conversion decision – where the appellant was not deemed 'suitable' to perform the role – consideration of whether the appellant is 'suitable' to perform the role – whether the decision was fair and reasonable – appeal allowed |
LEGISLATION AND INSTRUMENTS: | Acts Interpretation Act 1954 (Qld) s 27B Industrial Relations Act 2016 (Qld) s 451, s 562B, s 562C, s 564 Public Sector Act 2022 (Qld) s 3, s 4, s 114, s 115, s 116, s 120, s 131 Directive 02/23: Review of non-permanent employment cl 4, cl 7, cl 10, cl 13 Directive 07/23: Recruitment and Selection |
CASES: | Brydon v State of Queensland (Queensland Health) [2024] QIRC 116 Gilmour v Waddell & Ors [2019] QSC 170 Goodall v State of Queensland (Supreme Court of Queensland, Dalton J, 10 October 2018) Horne v State of Queensland (Queensland Health) [2022] QIRC 359 Jones v State of Queensland (Queensland Health) [2022] QIRC 317 Sarnadsky v State of Queensland (Queensland Health) [2022] QIRC 028 State of Queensland (Queensland Health) v Hume [2024] ICQ 3 |
Reasons for Decision
- [1]Ms Lucia Pullen is employed by Queensland Health as a nurse. She has worked for Torres and Cape Hospital and Health Service (TCHHS; the Respondent) for more than nine years.
- [2]Ms Pullen commenced work at Bamaga Hospital in 2015, in a permanent full-time capacity. She later relinquished the security of permanent employment to relocate to Cairns for family reasons.
- [3]Ms Pullen continued work with TCHHS in various capacities. Her current contract expires on 29 November 2024.[1]
- [4]A few months ago, Ms Pullen was advised of a vacancy in a permanent full-time role (NRG 10). She was "invited to submit her resume and apply for conversion to permanent employment via the vacant role"[2] – and did so.
- [5]Ultimately, the Delegate determined not to convert Ms Pullen's employment status to permanent because she was not considered 'suitable' to perform the NRG 10 role. That was despite Ms Pullen's service for the last two years predominantly being in NRG 10 classification level positions. Further, Ms Pullen was performing the (substantively vacant) 'Assistant Director of Nursing, Clinical Redesign Clinical Coordinator' (NRG 10.02) role at the time of the conversion review.[3]
- [6]Ms Pullen has filed this appeal against the Delegate's decision.
Jurisdiction
- [7]Section 131 of the Public Sector Act 2022 (Qld) (PS Act) identifies the categories of decisions against which an appeal may be made. Section 131(1)(a) of the PS Act provides that an appeal may be made against "a conversion decision".
- [8]The Appellant has been an employee of the Respondent at all times relevant to this appeal.
- [9]I am satisfied that the conversion decision can be appealed.
Timeframe to Appeal
- [10]Section 564(3)(d) of the Industrial Relations Act 2016 (Qld) (the IR Act) requires that an appeal be lodged within 21 days after the day the decision appealed against is given.
- [11]The Delegate's decision letter was dated 22 August 2024, and received by the Appellant the following day. This appeal was filed on 12 September 2024.
- [12]I am satisfied that the Appeal Notice was filed within the required timeframe of 21 days.
Appeal principles
- [13]Section 562B(3) of the IR Act provides that the purpose of a public service appeal is "to decide whether the decision appealed against was fair and reasonable."[4]
- [14]A public service appeal under the IR Act is not by way of rehearing,[5] but involves a review of the decision arrived at and the decision–making process associated therewith.
- [15]Findings made by the Respondent, which are reasonably open to it, should not be disturbed on appeal.
- [16]Pursuant to s 451(1) of the IR Act, this matter has been decided without a hearing.
'Fair and reasonable'
- [17]In the recent Industrial Court of Queensland decision in State of Queensland (Queensland Health) v Hume,[6] Deputy President Merrell held that the words 'fair and reasonable' are to be given their ordinary meaning, in the determination of public sector appeals.
- [18]His Honour observed that, for appeals of this type, "the question of whether the internal decision was fair and reasonable was not to be answered by the application of the test of legal reasonableness" in the decision of the Supreme Court in Gilmour v Waddell & Ors.[7]
- [19]
- [41]Where I have difficulty with the Department's submissions is in respect of its construction of the phrase '… fair and reasonable' and the implication of that construction on the review of a decision in deciding a public service appeal. This difficulty arises for a number of reasons.
- [42]First, having regard to the relevant text of the IR Act, there is no reason to conclude that the words 'fair' and 'reasonable', that make up the phrase '… fair and reasonable', are used in other than their ordinary meaning.
- [43]The Department accepted that the Commission was not sitting in judicial review of a decision that could be appealed. However, the Department submitted the focus of the Commission's consideration ought to be whether the decision was reasonable applying a Wednesbury and Li approach in terms of reasonableness, as opposed to the Commission considering for itself what was reasonable. The text of s 562B(3) of the IR Act does not indicate that the Commission is assigned to review relevant decisions according to the principles of judicial review. That is, the statutory text does not indicate that those words are meant to be construed in the technical sense pressed by the Department; namely, that 'reasonable' involves a consideration of whether the decision met the legal standard of reasonableness.
- [44]Similar arguments made to the Commission have been rejected by the Commission.
- [45]Mr McKay of Together Queensland, Industrial Union of Employees, which is the agent for Mr Hume, referred to the decision of Nicholson J in Pope v Lawler as authority for the proposition that the words 'fair' and 'reasonable' in s 562B(3) of the IR Act have their ordinary meaning.
…
- [48]Allowing for the clear differences in the applicable legislation, the reasoning of Nicholson J supports the conclusions I have reached above, namely:
- that s 562B(3) of the IR Act, by its terms, does not strictly ascribe to the words 'fair' and 'reasonable' the technical meanings pressed by the Department; and
- that the legislative intention is that those words, that make up the phrase '… fair and reasonable' in s 562B(3) of the IR Act, are to be given their ordinary meaning.
- [49]The word 'fair', in the context it is used in s 562B(3) of the IR Act, means '… free from bias, dishonesty, or injustice'46 and the word 'reasonable' means '… agreeable to reason or sound judgment'.47 Whether a decision the subject of a public service appeal is '… fair and reasonable' is a question of fact.
- [50]Secondly, to ascribe the technical meanings, pressed by the Department, to 'fair' and 'reasonable' would be inconsistent with the role of the Commission in respect of its original jurisdiction in deciding public service appeals. Section 447(1)(n)(i) of the IR Act provides that one of the Commission's functions is to deal with applications brought under the IR Act or another Act, '… including for public service appeals.' By s 447(2) of the IR Act, the Commission must perform its functions in a way that is consistent with the objects of the IR Act, and avoids unnecessary technicalities and facilitates the fair and practical conduct of proceedings under the IR Act.
- [51]By s 531(2) of the IR Act, in proceedings, the Commission is not bound by the rules of evidence and may inform itself in the way it considers appropriate in the exercise of its jurisdiction. Section 531(3) of the IR Act relevantly provides that the Commission is to be guided in its decisions by equity, good conscience and the substantial merits of the case having regard to the interests of the persons immediately involved and the community as a whole.
…
- [53]The limitation on legal representation in such appeals is inconsistent with the view that the words 'fair' and 'reasonable' have the technical meanings attributed to them by the Department.
What decisions can the Industrial Commissioner make?
- [20]In deciding this appeal, s 562C of the IR Act provides that the Industrial Commissioner may:
- confirm the decision appealed against;
- set the decision aside and substitute another decision; or
- set the decision aside and return the matter to the decision maker with a copy of the decision on appeal and any directions considered appropriate.
Chronology
- [21]On 21 June 2024, Ms Dean, Senior Human Resources Business Partner, Workforce and Engagement, advised Ms Pullen the permanent full-time role as Assistant Director of Nursing Clinical Coordination Hub (NRG 10) was vacant. Ms Pullen was invited to "submit her resume and apply for conversion to permanent employment via the vacant role. Later [that same day], [Ms Pullen] submitted her resume to Ms Dean and requested conversion to permanent employment."[9]
- [22]The Respondent submitted that "On 24 June 2024, a review of [Ms Pullen's] non-permanent employment status commenced in accordance with section 115 of the PS Act and clause 7.1 of [Directive 02/23: Review of non-permanent employment] …"
- [23]
… sent [Ms Pullen] an 'invitation to informal interview as a part of the eligibility for the role process' and provided a Microsoft Team meeting link to particulate in the interview scheduled for 24 July 2024. Relevantly, listed as required attendees to the interview were [Ms Pullen], Ms Fretwell, 'TCHHS-Nursing-Midwifery' and 'TCHHS Executive Director of Medical Services'. Also listed as optional attendees were 'Care Coordination Service Centre Director' and 'Ineke Wever.[11]
On 24 July 2024, an interview and suitability assessment were conducted by a panel comprising Ms Fretwell, Mr Jacob Walsh (Acting Executive Director of Nursing and Midwifery Services) and Dr Ineke Wever (Acting Executive Director Medical Services) with [Ms Pullen].[12]
- [24]The Respondent explained that:
The interview and suitability assessment were undertaken to assess the Appellant's experience, knowledge and capability against the key role requirements of the Assistant Director of Nursing Clinical Redesign Clinical Coordinator (NRG 10) role, which was substantively vacant at the time of review of [Ms Pullen's] non-permanent employment status.[13]
- [25]On 2 August 2024, "it was determined [Ms Pullen] did not meet the key role requirements of the [ADON CRCC] (NRG 10) role, particularly in reference to the generic level classification statement provided …" in the certified agreement. Almost two weeks later, the "review process was subsequently finalised …"[14]
- [26]On 23 August 2024, Ms Pullen received the Delegate's decision not to convert her employment status to permanent, due to the "outcome of [Ms Pullen's] suitability assessment, as part of the review process."[15]
- [27]In the Delegate's decision letter dated 22 August 2024, Ms Pullen was:
… informed that her 'current non-permanent employment in the role of Clinical Nurse Consultant (NRG7), Workforce Nursing Team (casual) in Cairns will continue'.[16]
Delegate's reason for conversion refusal
- [28]The Delegate explained the reason Ms Pullen would not be converted to permanency was that she was not considered "suitable to perform the role"[17] of "NRG10 Assistant Director of Nursing (ADON) Clinical Redesign Clinical Coordinator position ['ADON CRCC'] that is substantively vacant at the time of this review."[18]
Work History
- [29]Ms Pullen submitted details of her Work History. That is not disputed by the Respondent.
- [30]
Employment type | Date | Details | Designation | Classification |
Permanent | 16.01.2015 Commenced with TCHHS | CNC at Bamaga Hospital | Bamaga (Full time) | NRG 7 |
Until September 2016 | Backfill role of Nursing Director, on multiple occasions | Bamaga | NRG 9 | |
Temporary | September 2016 - July 2017 | Nursing Director | Bamaga | NRG 9 |
Permanent | July 2017 – 30 June 2021 | Director of Nursing Facility Manager | Bamaga | NRG 10 |
| 05.07.2021 –05.09.2021 |
| NRG 7.4 | |
Temporary | 06.09.2021 – 10.10.2021 | ADON Clinical Coordination Hub (CCH) | ||
11.10.2021 – 06.12.2021 | Long Service Leave | |||
Temporary | 07.12.2021 – 24.12.2021 | ADON Clinical Coordination Hub (CCH) | ||
Temporary | 05.01.2022 – 19.06.2022 | Director of Nursing Change and Engagement | Care Coordination | NRG 10.2 |
20.06.2022 – 04.09.2022 (66 days) | Director of Nursing Midwifery North – Thursday Island Hospital | |||
05.09.2022 – 18.09.2022 | Casual CNC break in service | NRG 7.4 | ||
Temporary | 19.09.2022 – 06.11.2022 | ADON Clinical Coordination Hub (CCH) | ||
07.11.2022 – 04.12.2022 | Director of Nursing Clinical Projects | Care Coordination | ||
05.12.2022 – 17.01.2023 | Director of Nursing Midwifery Thursday Island Hospital | |||
Temporary | 18.01.2023 – 30.06.2023 | Director of Nursing Clinical Projects | Care Coordination | NRG 10[20] |
Temporary | 01.07.2023 – 06.02.2024 | ADON Clinical Coordination | NRG 10[21] | |
07.02.2024 – 25.03.2024 | Recreation Leave | |||
26.03.2024 – 26.05.2024 | CNC Wujal | |||
27.05.2024 – 30.06.2024 | DON Wujal | NRG 10[22] | ||
Temporary | 01.07.2024 – 07.07.2024 | ADON Clinical Coordination | NRG 10[23] |
- [32]The Respondent submitted that (emphasis added):
Over the majority of [Ms Pullen's] service for the two-year period immediately preceding the review, [Ms Pullen] performed temporary engagements in NRG 10 classification level positions, including:
- a.Assistant Director of Nursing, Clinical Redesign Clinical Coordination;
- b.Director of Nursing, Wujal Wujal; and
- c.Director of Nursing, Clinical Projects within TCHHS.[24]
Submissions
- [33]The parties filed written submissions in accordance with the Directions Order issued. I have carefully considered all submissions and materials.
Appellant's submissions
- [34]Ms Pullen set out her reasons for appeal to be that:
- TCHHS Employee Relations (ER) manager advised her of the vacant position, asked her to submit her resume if she wished to be considered for conversion into it – but that "no other information was provided regarding the process that would be followed".[25]
- When Ms Pullen contacted ER "to clarify [her] suitability", ER advised her that her "previous history of working in the role was sufficient."[26]
- Ms Pullen was then invited to an "informal interview".[27] That is supported by the 'Microsoft Teams Meeting' invitation, sent to Ms Pullen by Ms Fretwell. That meeting invitation showed "Required Attendees" to be Ms Fretwell, Ms Pullen, "TCHHS- Nursing-Midwifery" and "TCHHS Executive Director of Medical Services".
- On the same day as the "informal interview", Ms Pullen stated that she "also attended another formal interview … for another advertised higher level temporary position (Nurse Grade 11) which I was merited for having been able to prepare adequately."[28]
- Ms Pullen sought feedback on the interview, which she reported to be that "…the outcome was based mainly on the interview component which I agreed I did not perform as best as I could have."[29]
- Ms Pullen stated that "Since July 2021 working in temporary relieving positions at Nurse Grade 10 and Nurse Grade 11 including in the Clinical Coordination Hub where the vacancy occurred. I have previously applied for the temporary role and was merited and awarded temporary contract."[30]
- Ms Pullen said that she had "previously applied for the temporary role in January 2024 and was merited and awarded temporary contract in July 2024."[31]
- Ms Pullen sought "the opportunity to be reassessed for this position by attending a formal interview with a new panel."[32]
Respondent's submissions
- [35]The Respondent submitted that:
- Ms Pullen is currently employed on a temporary basis as a Clinical Nurse Consultant (NRG 7), Workforce Nursing Team.[33]
- On 21 June 2024, Ms Dean (Senior Human Resource Business Partner, Workforce and Engagement) invited Ms Pullen to "submit her resume and apply for conversion to permanent employment via the vacant role" (that is, the position of 'Assistant Director of Nursing Clinical Coordination Hub, NRG 10). She did so.[34]
- On 24 June 2024, the Respondent submitted that a review of Ms Pullen's non-permanent employment status commenced in accordance with s 115 of the PS Act and cl 7.1 of the Directive 02/23: Review of non-permanent employment (the Directive).[35]
- In the two-year period immediately prior to the review, Ms Pullen "performed temporary engagements in NRG 10 classification level positions" for the majority of that time.[36]
- On 15 July 2024, Ms Pullen was sent a Microsoft Teams meeting link by Ms Fretwell, inviting her "to informal interview as apart of the eligibility for the role process." That link indicated two further 'required attendees' - and another two 'optional attendees'.[37]
- On 24 July 2024, a three-person panel conducted "an interview and suitability assessment" with Ms Pullen.[38] That was done to assess Ms Pullen's "experience, knowledge and capability against the key role requirements" of the ADON Clinical Redesign Clinical Coordinator (NRG 10) role, "which was substantively vacant at the time of review of the Appellant's non-permanent status".[39]
- The suitability assessment concluded Ms Pullen did not meet the key role requirements of the ADON Clinical Redesign Clinical Coordinator (NRG 10). Sometime later, Ms Pullen was advised of that outcome in the Delegate's correspondence dated 22 August 2024.[40]
- The Delegate's decision was fair and reasonable because:[41]
- a)The "review was undertaken pursuant to s 115 of the PS Act, to which ss 114(3) and (4) of the PS Act applies."[42]
Notwithstanding the above, it was submitted that although "the Decision does not address all the matters prescribed in s 115(4) of the PS Act…" that "does not render the decision not fair and reasonable, nor is the Appellant prejudiced by the omission of the information."[43] The Respondent stated the Commission's decision in Brydon v State of Queensland (Queensland Health) ('Brydon')[44] supported that assertion, as it was "in relation to the substantially similar provisions in s 120 of the PS Act."[45]
- b)Though Ms Pullen's experience working in NRG 10 level positions for the majority of the two years prior to review was acknowledged, the "robust review process undertaken" for the "substantively vacant NRG 10 … role" found she was not suitable because the key role requirements were not met.[46]
- c)Ms Pullen's "suitability was assessed in accordance with the Directive's guidelines", specifically the key capabilities of the ADON Clinical Redesign Clinical Coordinator (NRG 10) role description.[47]
- d)Ms Pullen's prior work at NRG 10 level was in "temporary engagements undertaken to meet an occupational requirement" and do not mean she can perform work at that level "satisfactorily for a sustainable period."[48]
- e)The role description for ADON Clinical Redesign Clinical Coordinator (NRG 10) was updated to "meet changed business requirements", so although Ms Pullen was working in the role before the review nonetheless she did not satisfy the updated key capabilities of the role.[49]
- f)The interview process undertaken "does not alter the outcome of her suitability assessment." That is because: the "invitation to interview" made Ms Pullen aware of the three panel members; a "suitability assessment would be undertaken as part of her employment status review"; Ms Pullen had reasonable notice of, and adequate time to prepare for, the interview.[50]
- g)The panel were unanimous in the decision to not recommend Ms Pullen's permanent appointment to the NRG 10 role, as she "could not satisfactorily perform the key capabilities of the role."[51]
- h)The Delegate had regard to the panel's determination that Ms Pullen was not suitable for permanent conversion, as required by s 114(3)(a)(ii) of the PS Act.[52]
Consideration
Decision criteria for conversion to permanency
- [36]
- (a)there is a continuing need for someone to be employed in the role, or a role that is substantially the same; and
- (b)the employee is suitable to perform the role; and
- (c)any requirements of an industrial instrument are complied with in relation to the decision.
- [37]The Delegate's reason for refusing conversion is important, in light of s 114(3)-(4) of the PS Act above. That is, the Delegate stated Ms Pullen's employment was not converted to permanency because she was not deemed 'suitable'. The Delegate did not refuse Ms Pullen's request on any other ground.
- [38]The Respondent submitted that Ms Pullen's "suitability was assessed in accordance with the Directive's guidelines. Of concern [to the Respondent] was [Ms Pullen's] ability to meet the relevant mandatory conditions of the NRG 10 role (which as stated aligned with the generic level statements within the Agreement), in other terms, the 'key capabilities' of the role."[55]
- [39]For the reasons that follow, I reject the Respondent's submission.
- [40]Section 114(9) of the PS Act refers to the Directive for the definition of "suitable". The Directive provides (my emphasis):
- 10.Meaning of suitable
- 10.1A public sector employee is to be considered suitable to perform the role where:
- a.the employee has provided evidence of possessing any relevant mandatory qualification/s (as reflected in the role description), and
- b.the employee meets any relevant mandatory condition/s of the role (as reflected in the role description), and
- c.the employee is not subject to any unresolved and documented conduct or performance matters that have been put to the employee in writing and, where required, managed in accordance with a relevant directive, such as the directives relating to positive performance management or discipline.
- [41]The Directive refers to the Recruitment and Selection (Directive 07/23) (RS Directive), to define the term 'mandatory condition/s'.[56] The RS Directive provides the following definition:
Mandatory conditions are inherent requirements of the role and can include certain classes of drivers' licence, statutory restrictions, any requirement for the person employed in the position to undertake regular travel etc.
- [42]The Respondent provided the 'Role Description – Assistant Director of Nursing Clinical Coordination Hub NRG 10' document, as an attachment to submissions filed 10 October 2024. The Respondent submitted the role description had been reviewed and updated – so that even though Ms Pullen had worked in the role for a significant amount of time in the two years prior, she did not meet the "key capabilities" of it.
- [43]That cannot be correct. I note the 'Date review commenced' was 24 June 2024,[57] the 'Date review due' was 2 July 2024,[58] the 'interview' conducted on 24 July 2024,[59] and the 'suitability assessment' process concluded on 13 August 2024.[60] However, the role description submitted by the Respondent (against which Ms Pullen was 'assessed') states it was last "Updated: 14.09.2020". If the role has indeed been reviewed and updated, it must have occurred after Ms Pullen's conversion review – not before.
- [44]Further, Ms Pullen submitted she had applied for the temporary ADON CC (NRG 10) role "in January 2024 and was merited and awarded temporary contract in July 2024."[61]
- [45]I also find it odd that Ms Pullen was said to be found "not suitable" for conversion because she did not meet two specific "key capabilities", contained in the "Suitability Assessment". That is because the role description contains six described "key capabilities". If I were to accept the Respondent's argument that the key capabilities informed the Delegate's determination of the "suitability criteria" for the purpose of the conversion decision, then it would surely follow that Ms Pullen would be "assessed" against all six key capabilities. That did not occur. The panel instead confined their report to only three key capabilities – and of those three, the panel considered Ms Pullen did not meet two, opining she "Does not generally meet this key capability". Therefore, if the Delegate considered the "key capabilities" contained in the role description to be determinative of whether Ms Pullen was deemed "suitable" for conversion to permanency, it is strikingly unfair that the panel confined their 'assessment' to only half of them. Further, if the panel's assessment were to be accepted and Ms Pullen was considered not to have met two key capabilities, she seemingly has been deemed to have met the other four. Also noteworthy is that the role description does not state that all six key capabilities are mandatory, but rather provides that all would be demonstrated by the "ideal applicant". In this context, Ms Pullen is not an "applicant" either. There is no requirement that the role be 'vacant' in order for an employee to be converted to permanency under Part 9, Division 1 reviews of this type.[62] Instead, Ms Pullen was currently working in the role and subject of the employer's belated attention to the mandatory conversion review.
- [46]Working in the role successfully, it is safe to presume. There is no material before me to indicate Ms Pullen has been subject of any performance and / or disciplinary action, as the Respondent did not submit that to be grounds for the "unsuitability" determination. The Respondent has not argued Ms Pullen was not suitable for conversion under cl 10.1(c) of the Directive.
- [47]I further note there is no contention that Ms Pullen does not possess the mandatory qualification, set out in the role description. The Respondent did not argue Ms Pullen was not suitable for conversion under cl 10.1(a) of the Directive.
- [48]I now return to consider the term "mandatory conditions", as defined in the RS Directive. The role description refers to those under the headings "Specific working conditions" and "Employee obligations". Those sections of the role description contains the matters indicated in the RS Directive as the "mandatory conditions" – drivers' license, travel requirements, vaccination status, police checks and the like. There is no contention that Ms Pullen cannot meet those expressed "mandatory conditions".
- [49]In my view, the Respondent has stretched the meaning of "relevant mandatory condition/s of the role (as reflected in the role description)" beyond the definition contained in the RS Directive. If it were intended to mean an employee was unsuitable for conversion because they had not fulfilled the requirements of the role description, that would have been stated as such. Instead, the provision refers to the 'mandatory conditions' in the role description.
- [50]In circumstances where an employee is not satisfactorily meeting the requirements of the role, other processes are available to support and develop the worker to perform work to the required standard – escalating to formal PIPs, or even disciplinary process, if Positive Performance Management strategies do not elicit the required results. What has instead happened to Ms Pullen is that she was working away in NRG 10 roles on a non-permanent basis for the majority of the two years prior to review, apparently undisturbed by any such process. Only when the Respondent (belatedly) conducts a review of some questionable standard are 'issues' imputed that prevent Ms Pullen's conversion to permanency.
- [51]Both parties have made submissions about the 'interview' conducted. That is also relevant to my consideration of whether the Delegate's decision was fair and reasonable. The Directive provides for the process to be followed when a chief executive starts a review of non-permanent employment. Those mandatory requirements to provide written notice, and the contents of that notice, are set out at cl 7.5 and 7.6.
- [52]The Directive provides that an employee must be notified in writing when a chief executive starts a review of their employment status - and sets out the mandatory inclusions of that notice. The required notice must include "that the employee or their representative may choose to provide a written submission for consideration during the review process", amongst other things.
- [53]In the document titled 'Suitability Assessment: Request for approval of permanent appointment' provided by the Respondent, the 'Date review commenced' is "24 June 2024" and the 'Date review due' is "02 July 2024". Email exchanges between Ms Pullen and others have been filed, however there are none containing the required written notice or invitation to Ms Pullen to make "a written submission for consideration during the review process". If Ms Pullen had been invited to make a written submission – or indeed had submitted one – I would assume that would have been included in the parties' filed materials. It was not.
- [54]Ms Pullen submitted that "no other information was provided regarding the process that would be followed".[63] If that were not accurate, I would expect the Respondent to produce the mandatory notice.
- [55]On the material before me, I cannot conclusively determine whether or not the Respondent has complied with the mandatory requirement to provide a written notice of review commencement to Ms Pullen, containing the matters set out at cl 7.6 of the Directive. Though it appears that was not done.
- [56]TCHHS seems to have embarked on its own process instead:
- Ms Dean advised Ms Pullen of the 'vacancy' (which is not a requirement to commence a conversion review) and invited her to provide her resume if she was interested in 'conversion into this role' by email dated 21 June 2024;
- Ms Pullen submitted that she asked Ms Dean what was need to "clarify my suitability" and was told that her "previous history of working in the role was sufficient";[64]
- A Microsoft teams meeting invitation was sent to Ms Pullen by Ms Fretwell. That included the following note from Ms Fretwell (emphasis added):
Good afternoon Lucy,
Recruitment have been in contact with myself in regard to temp-to-perm eligibility at NG10, and your interest in the above mentioned position.
Please accept this invitation to informal interview as apart of the eligibility for the role process.
If you have any questions please don't hesitate to make contact with either myself or the recruitment team.
Regards,
Natasha Fretwell
- [57]The Respondent submitted that the interview process conducted "does not alter the outcome of her suitability assessment." I have addressed the many flaws in the 'suitability assessment' earlier in this Decision and need not repeat that here.
- [58]The Respondent submitted that the invitation to interview "disclosed the three members of the panel assigned to interview" Ms Pullen.[65] That is not the case. Dr Wever attended, although she was listed as an 'optional attendee'. Mr Walsh attended, as one of the two other 'required attendees', though seemingly the fourth person indicated as 'required attendee' did not attend. Ms Pullen may have known who might be at the interview from the calendar invitation, but she did not know who would be.
- [59]The Respondent submitted that Ms Pullen was aware a "suitability assessment would be undertaken as part of her employment status review". The question in my mind is, 'how'? The emails filed provide no evidence of that. I have no written notice of commencement of review before me. Ms Pullen submitted that Ms Dean (HR) said "her previous history of working in the role was sufficient." The sole hint is in Ms Fretwell's email (reproduced above) that obliquely refers to "informal interview as apart of the eligibility for the role process." That is not solid grounds for the Respondent to assert that Ms Pullen knew a "suitability assessment would be undertaken as part of her employment status review" – or importantly, what such a process would entail.
- [60]The Respondent submitted that Ms Pullen had reasonable notice of, and adequate time to prepare for, the interview.[66] In my view, the inherent unfairness and unreasonableness lies not in the notice provided to Ms Pullen, but in the absence of any information as to what it was that she was to be participating in. Ms Fretwell advised Ms Pullen it was to be an "informal interview". That does not properly characterise the conduct of the meeting that occurred, the document produced, and the importance of it given the Delegate so heavily relied on the panel's findings in determining to refuse Ms Pullen conversion to permanent employment.
- [61]The Respondent has failed to conduct the review in a manner consistent with the purpose and intent of the PS Act or Directive – or even, in many cases, its mandatory terms.
- [62]The PS Act establishes 'permanent employment' as the default basis of employment in the Queensland public sector, as follows:
- [63]Section 3 of the PS Act provides:
- 3Main purposes of Act
The main purpose of this Act is to provide a framework for a fair and integrated public sector that serves the people of Queensland and the State.
- [64]Section 4 of the PS Act provides:
- 4How main purpose is primarily achieved
The main purpose of this Act is to be achieved primarily by —
…
- (c)creating a public sector that ensures fairness in the employment relationship and fair treatment of its employees by -
- (i)providing for the key rights, obligations and employment arrangements of public sector employees; and
- (ii)maximising employment security and permanency of employment; and
- (iii)taking steps to promote equity, diversity, respect and inclusion in employment, including for diversity target groups; and
- (iv)ensuring a high-performing and diverse workforce, through fair and transparent, merit-based selection processes; and
- (v)ensuring fair and accountable decision-making, including be providing public sector employees with access to fair and independent reviews and appeals; and
- (vi)setting a positive performance management framework for public sector employees; and
- (vii)fixing principles to guide public sector managers, and the work performance and personal conduct of public sector employees; and
…
- [65]The Directive's purpose[67] includes establishment of permanent employment as "the default basis of employment in the Queensland public sector." Its purpose also "supports and supplements the provisions of the Act with respect to the review of non-permanent employment" and "sets out procedures for reviews and requirements for decisions in the context of reviewing a non-permanent employee's employment status."
- [66]The Delegate refused to convert Ms Pullen's employment to permanent because he determined she was not "suitable". For the reasons above, the Delegate's decision was not fair and reasonable. I will disturb the Delegate's decision – and instead find that Ms Pullen was 'suitable' for permanent conversion to the NRG 10 role she held, at the time the review took place.
Other matters: Conduct of the mandatory review, procedures for reviews and requirements for decisions
- [67]In light of the Respondent's submission that the "review was undertaken pursuant to s 115 of the PS Act, to which ss 114(3) and (4) of the PS Act applies"[68] (with some limited qualification) some observations on the Respondent's attention to the conduct of the mandatory review, procedures for reviews and requirements for decisions are necessary.
Failure to comply with mandatory review date
- [68]
- [69]In fact, it appears Ms Pullen's review was long overdue. The 'Suitability Assessment: Request for approval of permanent appointment" document filed by the Respondent noted Ms Pullen's two-year service 'Anniversary date' was 7 December 2023 and the 'Date review commenced' was 24 June 2024. That is more than six months late.
- [70]Section 115(1)(2) of the PS Act provides the chief executive must decide whether to convert the employee from non-permanent to permanent employment within 28 days after the employee has had two years continuous employment with the public sector entity. The PS Act and Directive make clear the requirement is mandatory.
- [71]I note the Respondent has not submitted that a deemed decision not to convert the Appellant was made under s 115(6) of the PS Act 28 days after her two-year Anniversary date of 7 December 2023 – but instead relied on the assertion she did not meet the 'suitability' requirement. That is consistent with the Delegate's correspondence to Ms Pullen dated 22 August 2024, which begins with reference "to the review of your non-permanent employment status in accordance with s 115 of [the PS Act]… and clause 7.1 of [the Directive] …" I have proceeded on the basis that the Delegate has refused to convert Ms Pullen to permanency, after a two-year review in those terms.
- [72]On the evidence of the 'Suitability Assessment: Request for approval of permanent appointment" document filed by the Respondent, it would appear that the Respondent failed to comply with the mandatory requirement to conduct a review of Ms Pullen's employment status after two years of continuous employment.[71]
Failure to comply with mandatory elements of refusal notice
- [73]The Respondent submitted that "the Decision does not address all the matters prescribed in s 115(4) of the PS Act for a notice of a decision not to offer to convert an employee's employment to a permanent basis. However, the Decision sets out the reasons for the decision and outlines the previous temporary engagements performed by the Appellant in the two years preceding the review."[72]
- [74]Section 115(4) of the PS Act sets out the mandatory elements of the 'refusal notice' to be given to the employee, in circumstances where a decision is made not to convert their non-permanent employment to a permanent basis:
- a)the reasons for the decision; and
- b)the total period the employee has been continuously employed on a non-permanent basis in the public sector entity; and
- c)how many times the employee's employment on a non-permanent basis has been extended; and
- d)each decision previously made, or taken to have been made, under this section or section 114 during the employee's period of continuous employment.
- [75]Clause 13 of the Directive sets out the Respondent's obligations when a decision is made to not offer to convert an employee's employment to a permanent basis. That includes the requirement to include the following matters in the notice given to the employee:
- a)Information about any relevant appeal rights;
- b)Information about an employee's right to request an additional review under s 116 of the PS Act, in circumstances where the Delegate decided "not to offer to convert the employee's employment to a permanent basis because the person was not suitable to perform the role";
- c)Compliance with s 27B of the Acts Interpretation Act 1954 (Qld) (AIA) to:
- Set out the findings on material questions of fact; and
- Refer to the evidence or other material on which those findings were based.
- [76]In my view, the Respondent has only properly complied with one of the above mandatory elements of the refusal notice. My reasons follow:
- a)Reasons for the decision
The Delegate's decision included some of the decision criteria (s 114(3)(a) of the PS Act) for conversion to permanency and referred to the outcome of the suitability assessment and review that was undertaken.
However, the Delegate's reasons are not compliant with s 27B of the AIA[73] because he has not provided "the evidence or other material on which those findings were based", such as the 'Suitability Assessment: Request for approval of permanent appointment' that was later filed as an attachment to the Respondent's submissions in this case.
The Delegate also did not include an extract of the meaning of 'suitable' under the Directive (cl 10) nor state the particular element of that clause by which the Delegate determined to refuse Ms Pullen's conversion on 'suitability' grounds. Only in the Respondent's submissions was it stated that the refusal was made under cl 10.1(b) of the Directive.
- b)The total period the employee has been continuously employed on a non-permanent basis in the public sector entity
As submitted by the Respondent, the Delegate's decision sets out "the previous temporary engagements performed by the Appellant in the two years preceding the review". That is not the extent of the requirement in s 114(5)(b) of the PS Act. The answer to the question instead lies in Ms Pullen's own submissions detailing her work history. That was not refuted by the Respondent, so I accept it to be accurate. On the material before me then, Ms Pullen has been continuously employed on a non-permanent basis in the public sector entity (TCHHS) since 16 January 2015. The Delegate's decision did not include the "total period the employee has been continuously employed on a non-permanent basis in the public sector entity" as required.
- c)How many times the employee's employment on a non-permanent basis has been extended
The Delegate's decision did not include this mandatory element of the refusal notice.
- d)Each decision previously made, or taken to have been made, under this section or s 114 of the PS Act during the employee's period of continuous employment
The Delegate's decision did not include this mandatory element of the refusal notice. It may be possible that no review of Ms Pullen's non-permanent employment was conducted, prior to the muddle of that which commenced on 24 June 2024. On the material before me, I cannot know. Neither can Ms Pullen, which underscores the good sense of this mandatory requirement in the notice.
- e)Information about any relevant appeal rights
The Delegate's decision did include information about her right to appeal to the QIRC, which she clearly did.
- f)Information about an employee's right to request an additional review under s 116 of the PS Act, in circumstances where the Delegate decided "not to offer to convert the employee's employment to a permanent basis because the person was not suitable to perform the role
The Delegate's decision did not include this required information, pursuant to cl 13.3 of the Directive.
- [77]In addition to the omissions above, there are other issues with the Delegate's correspondence to Ms Pullen dated 22 August 2024:
- The second last paragraph of the first page does not make sense. It appears to be an error in amendment to a template, but the sentence as it reads omitted the critical piece of information in s 114(4) of the PS Act. That is, "If the matter in subsection (3) are satisfied, the employee's chief executive must decide to offer to convert the employee's employment to a permanent basis." That critical information was omitted from the letter provided to Ms Pullen.
- The letter does not refer to the Delegate's consideration of 'Human Rights', pursuant to cl 4.5 of the Directive.
- [78]The Respondent submitted that the Delegate's omission of mandatory elements in the decision letter / refusal notice "does not render the decision not fair and reasonable, nor is the Appellant prejudiced by the omission of the information."[74] The Respondent stated the Commission's decision in Brydon[75] supported that assertion, as it was "in relation to the substantially similar provisions in s 120 of the PS Act."[76] I cannot agree.
- [79]As I have outlined above, the refusal notice was peppered with error and omission that combined to withhold from Ms Pullen the information she was both entitled to and required in order to assess whether to appeal the Delegate's decision and the grounds on which to do so. While in this case, Ms Pullen has determined to file an appeal that I will uphold, other employees faced with such scant information may have made a different decision. The PS Act and Directive specifies a series of mandatory elements, and they must be complied with.
- [80]Further, the Commission's decision in Brydon is not in relation to "substantially similar provisions" in the PS Act. Brydon is about a 'higher classification' decision, pursuant to s 120 of the PS Act – this present matter is about a 'non-permanent employment' decision, pursuant to ss 114 and 115. There are many differences between these two types of matters, for example:
- In 'higher classification' matters (such as Brydon), the chief executive considers whether to convert the employee on a permanent basis to the position at the higher classification level - rather than to the 'role, or a role that is substantially the same' in this case;
- In 'higher classification' matters (such as Brydon), the employee makes a request to initiate the chief executive's consideration - rather than it being a 'mandatory periodic review' initiated by the employer;
- In 'higher classification' matters (such as Brydon), the eligibility period to make request is 'at least one year' – rather than it being a mandatory review after two years continuous employment;
- While the decision criteria in both matter types includes 'suitability', 'genuine operational requirements' and 'reasons for each decision previously made', the Delegate in the current matter was also required to consider compliance with 'any requirements of an industrial instrument' and whether there is a 'continuing need for someone to be employed' in the "role, or a role that is substantially the same'. The tests are not the same.
- [81]The Commission's decision in Brydon held he was not eligible to request permanent appointment to the higher classification position because Mr Brydon had not been working in the position for at least one year. After detailing what the letter provided to Mr Brydon did include, Industrial Commissioner Pidgeon concluded that (emphasis added):
… In those circumstances, I do not think that the omission of the date Mr Brydon commenced in the OO5 role serves to make the decision letter non-compliant with s 120(5) of the PS Act. Having determined that Mr Brydon was ineligible for conversion, I do not think the decision maker was required to go on to list matters such as the how many times (if any) Mr Brydon had been extended in the OO5 role or to inform him that no previous decisions had been made or taken to be made during his continuous period of acting at the higher classification.
The decision maker could have provided further information about the operation of cl 8 of the Directive and informed Mr Brydon that as he was not returning to the OO4 role at the end of his engagement in the OO5 role, his time in the OO5 role could not be considered an 'authorised absence'. The omission of this information does not render the decision not fair and reasonable.[77]
- [82]In the present matter, it is not disputed that Ms Pullen was entitled to an employer-initiated review of her non-permanent employment status after two years of continuous employment in the public sector entity (TCHHS). The matter of conversion was considered by the Delegate and refused. That is different to not having an entitlement for review in the first place. The mandatory requirements for a refusal notice clearly applied. The many defaults catalogued earlier in this Decision ought not be minimised. That is no mere blemish.
- [83]Having considered the Respondent's submissions and reference to Brydon, I have concluded that case is not analogous to this for those reasons.
Commencement of review triggered by 'vacancy', not two years continuous service
- [84]It is evident from both the email from Ms Dean to Ms Pullen dated 21 June 2024, and from the Microsoft Team Meeting invitation from Ms Fretwell to Ms Pullen, that it was the fact of the 'vacancy' that triggered the conversion review.
- [85]It is well settled that temporary to permanent conversion does not require there to first be a 'vacancy'.
Conclusion
- [86]For the reasons outlined above at [36]-[66], I have found that the Delegate's decision to refuse to convert Ms Pullen's employment to permanent on the basis that she was not "suitable" was not fair and reasonable.
- [87]Further, or in the alternate, the multiple process errors made by the Respondent as detailed at [67]-[85] must render the Delegate's decision unfair and unreasonable, such that Ms Pullen's conversion to permanency is warranted.
Orders
- [88]I order accordingly.
Pursuant to s 562C(1)(c) of the Industrial Relations Act 2016 (Qld):
- The appeal is allowed;
- The decision not to convert Ms Pullen's employment to permanent is set aside, and another decision is substituted; and
- That Ms Pullen's temporary employment status is converted to permanent full-time employment in the NRG 10 role.
Footnotes
[1] Appeal Notice filed 12 September 2024, 2.
[2] Respondent's submissions filed 10 October 2024, [5].
[3] Ibid Attachment 3.
[4] Industrial Relations Act 2016 (Qld) s 562B(3).
[5] Goodall v State of Queensland (Supreme Court of Queensland, Dalton J, 10 October 2018), 5 as to the former, equivalent provisions in s 201 of the Public Service Act 2008 (Qld).
[6] [2024] ICQ 3.
[7] [2019] QSC 170.
[8] [2024] ICQ 3.
[9] Respondent's submissions filed 10 October 2024, [5].
[10] Appellant's submissions filed 1 October 2024, 1.
[11] Respondent's submissions filed 10 October 2024, [8].
[12] Ibid [9].
[13] Ibid [10].
[14] Ibid [11].
[15] Ibid [12].
[16] Respondent's submissions filed 10 October 2024, [12].
[17] Public Sector Act 2022 (Qld) s 114(3)(a)(ii); Correspondence from Mr William Davis, Acting Executive Director Workforce and Engagement, Torres and Cape Hospital and Health Service to Ms Pullen dated 22 August 2024.
[18] Correspondence from Mr William Davis, Acting Executive Director Workforce and Engagement, Torres and Cape Hospital and Health Service to Ms Pullen dated 22 August 2024.
[19] Appellant's submissions filed 1 October 2024, 2.
[20] Respondent's submissions filed 10 October 2024, [7].
[21] Ibid.
[22] Ibid.
[23] Ibid.
[24] Ibid.
[25] Appeal Notice filed 12 September 2024, 4.
[26] Ibid.
[27] Ibid.
[28] Ibid.
[29] Ibid.
[30] Ibid.
[31] Appellant's submissions dated 1 October 2024, 1.
[32] Appeal Notice filed 12 September 2024, 4.
[33] Respondent's submissions filed 10 October 2024, [4].
[34] Ibid [5].
[35] Ibid [6].
[36] Ibid [7].
[37] Ibid [8].
[38] Ibid [10].
[39] Ibid.
[40] Ibid [11]-[12].
[41] Ibid [14].
[42] Ibid [15].
[43] Respondent's submissions filed 10 October 2024, [17].
[44] [2024] QIRC 116.
[45] Respondent's submissions filed 10 October 2024, footnote 2.
[46] Ibid [16].
[47] Ibid [21].
[48] Ibid [22].
[49] Ibid [23].
[50] Ibid [25].
[51] Ibid [26].
[52] Ibid [27].
[53] Public Sector Act 2022 (Qld) s 114(3).
[54] Ibid s 114(4).
[55] Respondent's submissions filed 10 October 2024, [19].
[56] Directive 07/23: Recruitment and Selection, Definitions.
[57] Respondent's submissions filed 10 October 2024, Attachment 3, 'Suitability Assessment: Request for approval of permanent appointment', 1.
[58] Ibid.
[59] Respondent's submissions filed 10 October 2024, [9].
[60] Respondent's submissions filed 10 October 2024, Attachment 3, 'Suitability Assessment: Request for approval of permanent appointment', 1.
[61] Appellant's submissions filed 1 October 2024, 1.
[62] Sarnadsky v State of Queensland (Queensland Health) [2022] QIRC 028; Jones v State of Queensland (Queensland Health) [2022] QIRC 317; Horne v State of Queensland (Queensland Health) [2022] QIRC 359.
[63] Appeal Notice filed 12 September 2024, 4.
[64] Appellant's submissions dated 1 October 2024, 1.
[65] Respondent's submissions filed 10 October 2024, [25].
[66] Ibid.
[67] Directive 02/23: Review of non-permanent employment, cl 1.
[68] Respondent's submissions filed 10 October 2024, [15].
[69] Public Sector Act 2022 (Qld) Part 9, Division 1.
[70] Ibid ss 114-115.
[71] Ibid.
[72] Respondent's submissions filed 10 October 2024, [17].
[73] Acts Interpretation Act 1954; Directive 02/23: Review of non-permanent employment cl 13.1.
[74] Respondent's submissions filed 10 October 2024, [17].
[75] Brydon v State of Queensland (Queensland Health) [2024] QIRC 116.
[76] Respondent's submissions filed 10 October 2024, footnote 2.
[77] Brydon v State of Queensland (Queensland Health) [2024] QIRC 116 [47], [48].